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USMC | DRB | 2010_Marine | MD1001065

Original file (MD1001065.rtf) Auto-classification: Denied

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received: 20100323

Characterization of Service Received: (per re-issued DD-214)

Narrative Reason for Discharge: (per re-issued DD-214)

Authority for Discharge: (per re-issued DD-214) MARCORSEPMAN 6203.3

Applicant’s Request:     Characterization change to: NO CHANGE REQUESTED
                           Narrative Reason change to : SECRETARIAL AUTHORITY

Summary of Service

Prior Service: Inactive: USMCR (DEP) 20040519 - 20040927

Period of Service Under Review:
Date of Enlistment: 20040928              Age at Enlistment:
Period of enlistment : Years Months
Date of Discharge: 20060825               Highest Rank: LCPL
Length of Service : 01 Yrs 10 Mths 28 D ys
Education Level:                  AFQT: 38
MOS: 0331
Proficiency/Conduct marks ( Average in service ): 3.5 / 3.8
Awards and Decorations ( per DD 214): CAR, ICM, GWOTSM, SSDR, NDSM, Rifle SS, Pistol MM

Periods of UA / CONF :

NJPs :             S CM :              SPCL CM: NONE

Retention Warnings:
         U ndated : For being diagnosed with physical condition , not a disability.

NDRB Documentary Review Conducted:                20080131
NDRB Documentary Review Docket Number: MD07-01256
NDRB Documentary Review Finding:         Discharge was proper, but not equitable; Upgrade characterization of service at discharge to Honorable

Types of Documents Submitted

Related to Military Service:      DD 214:          Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation :

Pertinent Regulation/Law

A. Paragraph 6203.3 CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1 . Decisional: Applicant seeks a change in the n arrative r eason for his s eparation to Secretarial Authority. Applicant contends that the Medical Treatment Facilit y incorrectly diagnosed the Applicant with Personality Disorder due to a lack of a proper assessment, resulting in his erroneous separat ion f rom the Marine Corps .

Decision

Date: 20 110303 Location: Washington D.C R epresentation : Department of
Veterans Affairs

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant did not identify any decisional issues related to the propriety or equity of his discharge for the NDRB’s consideration; however, the NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered military service with a waiver for pre-service drug use (marijuana) and a waiver for exceeding the Marine Corps Height/Weight standards upon enlistment. The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs – in writing – prior to his enlistment. The Applicant’s official service record documents one written paragraph 6105 retention-counseling warning regarding the Division Psychiatrist recommendation for separation due to a Condition not a Disability - Personality Disorder.

The Applicant’ s record of service contains neither documented counseling regarding misconduct nor administrative or punitive punishments for violations of the Uniform Code of Military Justice. Moreover, t he Applicant’s record of military service documents that he is a combat veteran, having deploy ed to a designated combat zone in the Al-Anbar province of Iraq , conduct ing ground combat operations as an infantry battalion machine-gunner in support of Operation IRAQI FREEDOM 04-06 from July 200 5 to February 2006 . The Applicant was awarded the Combat Action Ribbon for individual combat actions on 02 November 2005.

The Applicant participated in ground combat operations in Operations Area (AO) Raleigh. Prior to his redeployment to his home station, he completed a Post - Deployment Health Assessment. As a result of this assessment, he was referred for mental health treatment follow-up on redeployment. The Applicant redeployed to the United States in February 2006. In April 2006, the Applicant was evaluated due to re-experiencing episodes and other psychological issues during the intervening two -month period. He was referred for evaluation and treatment to the Division Psychiatrist with an appointment on 08 May. On 19 June, the Division Psychiatrist recommended that the Applicant be separated expeditiously by reason of Convenience of the Government, Condition Not a Disability - Personality Disorder. The Applicant was separated on August 25, 2006 with a General (Under Honorable Conditions) characterization of service.

The Applicant requested a documentary review of his discharge by the NDRB, seeking an upgrade in his characterization of service to H onorable in order to be eligible for VA educational benefits. Although this is an issue that the NDRB does not have the authority to grant relief for , t he NDRB conducted a detailed review of the propriety and equity of an Applicant’s discharge .
I n such a review , if it is reveal ed that an impropriety or inequity existed , relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge was inconsistent with standards of discipline of the Naval service. The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to his case. In the Applicant’s case, a particular circumstance of interest was the Applicant’s credible combat service and the lack of any negative information in the 23 months of service of the Applicant that would prevent a characterization of service as H onorable. The NDRB concluded that there was an inequity in the Applicant’s discharge action, was convinced that it was prejudicial to the Applicant, and therefore determined an inequity in the characterization of his service had occu r r ed . After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record s , Discharge Process , and the evidence submitted by the Applicant, the NDRB determined that the discharge was proper, but not equitable , and directed that the Applicant’s characterization of service at discharge be changed to Honorable. On 01 May 2008, the Applicant’s DD Form 214 was reissued, reflecting the change to Honorable characterization of service upon discharge.

: (Decisional) ( ) . The Applicant request s a change in the narrative reason for his separation to SECRETARIAL AUTHORITY , contending that the Medical Treatment Facility incorrectly diagnosed him with a Personality Disorder due to the lack of a proper and full assessment that resulted in him being erroneously separated from the Marine Corps.

At the time of the Applicant’s documentary review by the NDRB, he had not request ed a change to the narrative reason for his separation. The NDRB did review the Applicant’s medical and service record, but had no documentary evidence to challenge his reason for separation. Since discharge, the Department of Veterans Affairs (VA) has evaluated and treated the Applicant and diagnosed him with Chronic Post - Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) – directly resultant from his military service in combat . The Applicant continues to receive in-depth treatment and assistance with the VA for his diagnosed conditions.

In reviewing the Applicant’s contention, the NDRB took note of the VA Medical Center Psychiatric Board’s assessment that the Military Treatment Facility, due to the lack of a proper assessment period, had misdiagnosed the Applicant . Furthermore, the VA evaluation s reveal no history or indicat ors of a personality disorder and that the Applicant exhibits no indications of Bi- P olar D isorder. In addition to the VA diagnosis , the Applicant’s discharge package includes a statement from the Applicant’s chain of command that they believed the Applicant’s behavior stemmed directly from incidents in Iraq – where several member from his unit were killed and others seriously wounded – and was further compounded by his assignment to escort duty for the deceaseds ’ parents and wives.

Based on the long-term evaluation and treatment documented with the VA , the appropriately credentialed mental health care provider ’ s determin ation that the Applicant suffers from PTSD and a cognitive disorder , the Command’s own statements that they believed his behavior stemmed from service in Iraq, and the unique circumstances of this case, the NDRB determined that the Applicant was separated improperly . As such, the NDRB determined that relief in the form of a change in narrative reason for separation is warranted. Since no other narrative reason for separation accurately describes the reason the Applicant was separated, the NDRB determined that t he reason for discharge shall change to Secretarial Authority .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, d ischarge process, and evidence submitted by the Applicant, the Board found Therefore, the awarded characterization of service shall , and the narrative reason for separation shall change to .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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USMC | DRB | 2010_Marine | MD1001065

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